What Is the Feres Doctrine?

It’s connected to the 1946 Federal Tort Claims Act. As part of this law, the federal government gained immunity to claims that arise from wartime combat. In 1950, the Supreme Court added non-combat or incident of service injuries. Meaning that sexual assault, toxic poisoning, medical negligence and other non-combat related injuries cannot be the basis of legal action against the US government or military.

Over the years, Congress has attempted to correct Feres, but major changes haven’t been made.

Until now.

How Feres Changed in 2019

As part of the 2020 National Defense Authorization Act, military troops would be able to seek just compensation for medical malpractice by military doctors. In order to initiate the process, there is a new claims procedure being put into place.

This bill, however, stops short of allowing military troops to sue, a right that civilians have in the case of medical malpractice.

Additionally, there are limits to compensation and imposes financial burdens on troops making medical malpractice claims. The Department of Defense will be liable for only a portion of compensation due to a victim of medical malpractice by a DoD doctor.

The government will also not be liable to pay attorneys’ fees. Fees recovered by attorneys are limited to 20% of the paid claim.

Military Docs Missed Major Health Problem

The most recent changes were moved forward by Congresswoman Jackie Spier (D – CA). Earlier in 2019, Congresswoman Spier introduced the Sgt. First Class Richard Stayskal Military Medical Accountability Act.

Sgt. 1st Class Stayskal, an Army and USMC veteran, had seen military medical personnel repeatedly due to breathing problems and growing concerns over his health. Each time, he was told it was just asthma or pneumonia.

It was only when he sought another opinion from a civilian pulmonologist that Sgt. Stayskal learned that he had Stage 4 lung cancer. Military doctors and specialists had apparently missed a 3cm mass in one of his lungs.

This gross negligence spurred Congresswoman Spier and other political allies to create a movement for legal change, introducing the Stayskal Military Medical Accountability Act and pushing to allow troops to seek justice against medical malpractice.

Army Capt. Katie Blanchard was attacked with gasoline and lit on fire by a civilian colleague. The civilian employee had been brought to the attention of supervisors. He was seen as a threat to others, ultimately completely disfiguring Capt. Blanchard.

She was not allowed to seek damages from the military.

Navy Lt. Rebekah Daniel died during childbirth at a military medical facility. Her surviving spouse, Walter Daniel, sued and the case rose to the Supreme Court in May 2019. Ultimately, Walter Daniel v. United States was denied Supreme Court consideration. However, Justices Ruth Bader Gindberg and Clarence Thomas called for a review of the case.

Lt. Daniel’s case will not benefit from the most recent changes to Feres.

The Feres Doctrine’s roots are in another Supreme Court case from post-World War II. Lt. Rudolph Feres had served his country in Europe, and survived. Only to be killed in a barracks fire after the war.

Lt. Feres’ widow attempted to sue the US military for negligence in the death of her husband. The fight took them to the Supreme Court, which handed down the decision preventing troops from suing in all cases of illness, injury or death related to any military service.

Medical malpractice cases that predate 2017 have no options for recourse. However, cases occurring in 2017 will be able to file claims through the end of 2020. Following that, cases must have occurred within a two-year window, prior to the date the claim is being submitted.

Were you the victim of military medical malpractice? How do you feel about the changes to Feres? Does it go far enough? Sound off in the comments!